Legal Memorandum: Learned Intermediary Doctrine in MS

Issue: Under Mississippi law, does the learned intermediary doctrine apply to a pharmacist?

Mississippi recognizes the learned intermediary doctrine, under which the duty of a drug manufacturer extends only to physicians, not to the lay consumer of the drug.  Wyeth Labs., Inc. v. Fortenberry, 530 So. 2d 688, 691 (Miss. 1988).  The doctrine is the manufacturer’s defense.  Under the defense, a physician faces liability—and the manufacturer escapes liability—for failing to warn the patient if the drug manufacturer has provided adequate and reasonable warnings to the physician.  The law further provides that "[i]f there is no physician in the role of ‘learned intermediary’ then the drug manufacturer has a duty to adequately warn the consumer."  Id. at 692.  The manufacturer remains liable for failing to warn the ultimate consumer of the drug.

The law is not at all clear whether a non-physician can assume the role of learned intermediary.  If there is no physician deemed a learned intermediary, can a pharmacist take on the role of the learned intermediary?  Can a manufacturer escape liability by providing a warning to a pharmacist, and can the pharmacist face liability for failing to pass a known warning to the consumer?  These are questions that have never been addressed by a Mississippi state court, although a few other jurisdictions have addressed the issue and reached conflicting results.

In Pittman v. Upjohn Co., 890 S.W.2d 425, 434-35 (Tenn. 1994), Tennessee’s highest court considered application of the learned intermediary defense in the context of a pharmacist’s duty.  In Pittman, the defendant argued that a pharmacy owes no […]